Involving Opinions Issued Since 1/1/2023
- Marsillo v. Dunnick, 2024 Tex. Lexis 18 (Tex. Jan. 12, 2024).
Conclusory Evidence of Willful and Wanton Negligence
This case involves an emergency room physician’s treatment of claimant’s rattlesnake bite in which the doctor (pursuant to established hospital protocol) administered antivenom to treat the snakebite four hours after it occurred and three hours after the patient presented to the ER. The guidelines followed were issued by the American Academy of Family Practice and the manufacturer of CroFab, the antivenom used on this patient. Claimant argued the antivenom should have been given immediately on the patient’s arrival to the ER. The defendant doctor moved for a “no evidence” summary judgment. The trial court granted the doctor’s motion, but the Austin Court of Appeals reversed the trial court. The Texas Supreme Court (SCOTX) then reversed the court of appeals’ decision and reinstated the trial court’s ruling because claimant’s evidence was “conclusory” and, thus, “no evidence.”
The issue before SCOTX was whether or not claimant produced evidence of “willful and wanton” negligence by the ER physician, as required by section 74.153 of the Texas Civil Practice & Remedies Code. In this opinion, SCOTX discusses the meaning of “willful and wanton negligence” under section 74.153 and holds that such negligence is “at least gross negligence.” SCOTX went no further in discussing the willful and wanton negligence standard being higher than gross negligence because it found what claimant presented was conclusory and, thus, no evidence.
Before addressing claimant’s summary judgment evidence (an expert affidavit), the court discussed claimant’s burden, which was to produce competent evidence that “(1) [the doctor’s] decision to follow the Guidelines – rather than depart from them and administer antivenom immediately – objectively posed an “extreme degree” of risk to [the patient]; and (2) [the doctor] was subjectively aware of this risk but “proceed[ed] with conscious indifference” to the patient’s safety.
Claimant’s expert affidavit began by stating (1) snake envenomation is a time-sensitive emergency, (2) the only cure for envenomation is antivenom, and (3) outcomes are best, especially when dealing with rattlesnake bites, when definitive treatment is given as soon as possible. The expert then stated (1) “[i]mmediate administration of antivenom was necessary for [the patient] once she exhibited signs of envenomation,” (2) the defendant doctor “acted consciously indifferent in not ordering antivenom” immediately upon the patient’s arrival, (3) that when viewed objectively a reasonable and prudent physician would believe the defendant doctor’s “failure to immediately administer antivenom upon admission would create an extreme degree of risk of harm to [the patient] in not being able to prevent the progression of venom in her system,” and (4) “[a] reasonable ER physician would eliminate the extreme risk of harm that venom causes the body by immediately administering antivenom to [the patient] upon her admission.”
SCOTX then discussed that in his affidavit claimant’s expert “does not explain how he arrived at the opinion that the standard of care is always to administer antivenom immediately upon the first sign of envenomation or why the risks of antivenom administration should not be considered,” risks that the Guidelines say must be considered. Next, while the affidavit mentions a “unified treatment algorithm” for snakebite treatment in the U.S., and that this “is an evidence-informed consensus that is what all FDA approved antivenom algorithms are based on,” the affidavit does not explain the elements of that unified algorithm, why such an algorithm is needed if the standard of care is as simple as the expert states it is, and whether the referenced unified algorithm is different than the one utilized in this case. Finally, it discusses the expert’s affidavit fails to mention the guidelines followed here, and how following these guidelines “objectively posed an extreme degree of risk” to the patient. Thus, SCOTX held claimant’s expert affidavit contained only “conclusory” assertions, which are “considered no evidence” (citing Schindler Elevator Corp. v. Ceasar, 670 S.W.3d 577 (Tex. 2023) (quoting Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC, 572 S.W.3d 213 (Tex. 2019)).
- Uriegas v. Kenmar Residential HCS Servs., 675 S.W.3d 787 (Tex. 2023).
Expert Reports Sufficient
In this case, SCOTX discusses “[w]hile [claimant’s] two reports [individually] may lack sufficient specificity, …when viewed together, they sufficiently describe the standard of care…” This opinion again reinforces that where multiple reports are submitted by a claimant they should be considered together to determine whether claimant’s burden is met.
- Collin Creek Assisted Living Ctr., Inc. v. Faber, 671 S. W.3d 879 (Tex. 2023).
Health Care Liability Claim Alleged
Here, while the patient was being transferred to her daughter’s car to be taken to hair appointment by a rolling walker with the assistance of a facility PCA, the walker’s wheel caught in a sidewalk crack, the walker tipped over, the patient hit her head on the sidewalk, and the patient then died about a week later from injuries suffered. The issue was whether this claim concerns “treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional services or administrative services directly related to health care.” SCOTX held the claim did. Thus, it was a health care liability claim.
Again, the court instructed that when deciding if a claim is a health care liability claim focus is on the “operative facts ‘underlying the claim’ that are relevant to the injury, not on how ‘the plaintiff’s pleadings describe[e] the facts or legal theories asserted.’” The operative facts that support this being a health care liability claim include that (1) claimant was injured while being assisted by a facility employee per orders that the facility provide the claimant assistance ambulating, (2) the sidewalk crack was located where facility residents were commonly transported and transferred to/from vehicles, (3) the claimant’s injury occurred while a facility PCA was assisting a patient and had a duty to prevent patient falls, (4) the facility had statutory obligations as a provider of health care and patient safety services to maintain safe surroundings and assist patients with their ambulation needs, (6) the instrumentality used in providing patient care – a rolling walker – was involved in causing claimant’s injury, and (7) the facility had duties as a health care provider to maintain its sidewalks.
- Gregory v. Chohan, 670 S.W.3d 546 (Tex. 2023).
Non-Economic Damages Must Be Supported By Legally Sufficient Evidence
When seeking noneconomic damages (mental anguish and loss of companionship), the evidence/record must demonstrate “a rational connection between the injuries suffered and the amount awarded” (emphasis in original). The purpose of noneconomic and other compensatory damages is “to compensate victims, not to punish or deter tortfeasors.” Thus, these damages should be “[r]easonable and proper compensation…sufficient to place the plaintiff in the position in which he would have been absent the defendant’s tortious act.”
This case involved a truck driver (a husband, son and father of three) who was killed when a tractor trailer jackknifed and hit his vehicle. With respect to the noneconomic damages sought by decedent’s surviving family, the court stated that there must be legally sufficient “‘evidence of the nature, duration, and severity’ of mental anguish [loss of companionship, and any other noneconomic damage] to support both the existence and the amount of compensable loss” (emphasis in original). The court recognized that noneconomic damages are inherently indeterminate, and that juries must be afforded discretion when asked to assign a dollar value to such damages, but the court went on to state that “the jury’s discretion is by no means unlimited and [] the amount awarded must be supported by evidence” (emphasis in original).
In holding sufficient evidence was not presented to support the noneconomic damages sought and recovered, the court first addressed 2 improper techniques used by plaintiff’s counsel; “unsubstantiated anchors” and “unexamined ratios.” An unsubstantiated anchor is where a suggested damage amount is put forth by reference to objects or values with no rational connection to the case. The improper unsubstantiated anchors used here were (1) a $17 million fighter jet, (2) a $186 million painting, and (3) two cents for every one of the 650 million miles that defendant’s trucks drove during the year of the accident. These unsubstantiated anchors are “flawed analogies” because “[a]fter learning that a particular aircraft or painting sells for many millions of dollars, jurors are no closer to gaining a sense of how to compensate the family for their injuries” because “unsubstantiated anchors like [the fighter jet and painting analogies] have nothing to do with the emotional injuries suffered by the plaintiff and cannot rationally connect the extent of the injuries to the amount awarded.” Similarly, the purpose of the 2 cents/mile argument is to suggest defendant can afford a large award and should be punished. This argument “has nothing to do with compensation.”
An unexamined ratio involves relating the noneconomic damages sought to the economic damages established. The problem with this argument is that the noneconomic damages sought in a wrongful death case is different, unrelated and does not correlate to the economic damages the survivors suffered. The main issue with an unexamined ratio argument is that it allows “wealthier” survivors to recover “more [noneconomic] damages than another family could simply because the wealthier decedent stood to earn more during his life.” The court acknowledged, however, “[t]here are certainly circumstances in which some types of economic damages might correlate with noneconomic damages,” stating “the family of a decedent who suffers for an extended time in the hospital before passing away might suffer mental anguish due to the strain of dealing with medical bills and insurance hassles while coping with the death of a loved one” (the court here did not address or discuss the issue of “insurance” evidence being inadmissible).
In discussing what would be admissible, relevant evidence, the court mentioned “evidence ‘of the nature, duration, and severity’ of the anguish’ [and loss of companionship as another example] suffered.” As examples, the court sited “evidence of the likely financial consequences of severe emotional disruption in the plaintiff’s life,” as well as “evidence that some amount of money would enable the plaintiff to better deal with grief or restore his emotional health” because ít may be that money can “provide access to all kinds of things that may help a person who has endured such an experience.” While this seems to describe an “economic” damage, the court stated “[t]he required rational basis for the award may come from evidence suggesting a quantifiable amount of damages, such as testimony about the financial consequences of severe emotional trauma. Or the rational basis may be revealed by lawyer argument rationally connecting the amount sought – or on appeal, the amount awarded – to the evidence.”
With respect to the “lawyer argument” method, the court cautioned “merely asserting, without rational explanation, that any amount picked by the jury is reasonable compensation simply because a properly instructed jury picked the number is to argue that a jury may ‘simply pick’ a number and put it in the blank…is exactly what we have said must not be done.” In contrast, the jury “should be told why a given amount of damages, or range of amounts, would be reasonable and just compensation. Mathematical precision is by no means required, but it is not enough for the plaintiff or his attorney merely to assert, without rational explanation, that a given amount or a given range is reasonable and just.” When arguing a specific amount or range of damages should be awarded,
One party’s genuine belief is no rational basis for a judgment. There must be a reason given for why the belief is valid, a reason given for why the amount sought or obtained is reasonable and just. And it must be a rational reason grounded in the evidence…An attorney asking a jury to award [an] amount of damages should be expected to articulate the reason why the amount sought is reasonable and just, so that the jury can rationally decide whether it agrees…We hold only that a rational reason, grounded in the evidence must be given by the plaintiff, whose burden it is to prove the damages. Only then can juries and judges rationally assess whether the amount is reasonable and just compensation for the injuries suffered.
- Williams v. CTRH. L.L.C., 2024 Tex. App. Lexis 91 (Tex. App.—Austin, Jan. 5, 2024, n.w.h.) (mem. op.).
Reliable Expert Testimony
This case involved a patient’s death allegedly caused by hypoglycemia resulting from defendants’ failure to properly monitor and manage blood sugar. The issue was the reliability of claimant’s expert’s opinion that the decedent was alive when 2 blood glucose readings were obtained showing she was hypoglycemic. This opinion was based on a note in decedent’s records by one of decedent’s physicians stating that 2 low blood sugar readings were obtained shortly before decedent arrested. Defendants, however, obtained an affidavit from the physician that wrote this note stating he did not have first-hand knowledge of this information, and did not know where the information came from. The doctor went on to state that after reviewing the decedent’s records he believed the statement the patient was alive when those readings were obtained was inaccurate. Based on this evidence, defendants argued claimant’s expert’s testimony was, therefore, unreliable and inadmissible.
In addressing this issue, the Austin Court of Appeals discussed that “[w]hen an expert’s opinion is predicated on a particular set of facts, those facts need not be undisputed” for the opinion to be “reliable and admissible” (citing Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 443 S.W.3d 820, 833 (Tex. 2014)). “An expert’s opinion is only unreliable if it is contrary to actual, undisputed facts” (citing Burroughs Welcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). The court then held, thus, “Dr. Spicer’s medical discharge summary [stating the low blood glucose levels were pre-death] provides some evidence, despite his later affidavit to the contrary, to support [claimant’s expert’s] assumption that [decedent] was alive when the blood glucose readings were taken.”
- Roe v. Tajon, No. 02-23-00179-CV 2023 Tex. App. Lexis 9386 (Tex. App.—Fort Worth Dec. 14, 2023, n.w.h.) (mem. op.).
Expert Report Sufficient
The expert report “fair summary” standard is a “lenient” one (citing Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011)). In this case, the patient developed a deep venous thrombosis (DVT) and suffered a pulmonary embolism at a rehabilitation hospital following an acute hospitalization. The acute hospital physician (Dr. Tajon) argued the expert report provided did not adequately address causation. While Dr. Tajon documented in the records that the patient received DVT prophylaxis during his acute care hospitalization, the discharge medication reconciliation documentation did not mention any DVT treatments that should be administered following the patient’s discharge. The rehabilitation hospital physician, however, documented in his records that the patient was at risk for DVT and needed DVT prophylaxis, but he did not order any form of DVT prophylaxis. Dr. Tajon argued the report did not adequately address causation because the report’s attempts to causally link his alleged negligence to the decedent’s pulmonary embolism and subsequent death were not “factually tenable” since the rehab hospital doctor was aware of the patient’s need for DVT prophylaxis on admission. Thus, Dr. Tajon argued “his actions were too attenuated from Decedent’s death to have caused it.”
In response to this argument, the Fort Worth Court of Appeals stated, “whether [an] opinion is factually tenable is not for the trial court to resolve at [the preliminary expert report] stage.” The court held that report merely had to explain “how the negligent conduct caused the injury[; w]hether this explanation is believable should be litigated at a later stage in the proceeding.” Claimant’s report was adequate because it explained how Dr. Tajon’s negligence contributed to the patient not receiving DVT prophylaxis at the rehabilitation hospital, and contributed to the patient’s development of DVT and subsequent death. The court acknowledged that an allegedly negligent act can be “too attenuated from the resulting injuries to the plaintiff to be a substantial factor in bringing about the harm,” but added that plaintiff did not have to meet this burden at this early stage of the proceeding.
- Fuller v. Milton, No. 07-23-00204-CV, 2023 Tex. App. Lexis 9284 (Tex. App.—Amarillo, Dec. 11, 2023, n.w.h.) (mem. op.).
No Report Case
The patient, a minor, was given an antibiotic injection at the order of Ms. Fuller (a physician assistant) to treat what appeared to be acute pharyngitis and strep exposure. The injection was administered by a nurse. The patient developed an adverse reaction to the injection that resulted in tissue loss and nerve damage in her left leg. No objection to claimants’ expert reports on behalf of Ms. Fuller was made until 534 days after service of the report. Fuller’s objection was that the reports provided were “no report” as to her. One report did not refer to Fuller by name or position and did not attempt to address her conduct. Claimant did not dispute this report was “no report” as to Fuller. The issue was claimants’ second report.
In their petition, claimants alleged Fuller was negligent for failure to supervise facility personnel in giving the antibiotic injection. Claimants’ second report, however, made no mention of Fuller having a duty to supervise this injection’s administration. With respect to Fuller, the report only mentioned that (1) the physician assistant ordered the injection, and (2) that after the injection the physician assistant spoke with those involved in giving the injection and that it was given in the proper location. Based on this limited information, the Amarillo Court of Appeals held there was no report as to the physician assistant, reversed the trial court’s denial of Fuller’s motion to dismiss, and remanded the case to the trial court with instructions to dismiss the claim against the physician assistant.
- Dacbert v. Med. Ctr. Ophthalmology Assoss., LLP, No. 04-22-00097-CV, 2023 Tex. App. Lexis 8801 (Tex. App.—San Antonio Nov. 22, 2023, n.w.h.) (mem. op.).
Health Care Liability Claim Alleged
Here, a phoropter (also called a refractor; the big metal device that looks like two large circles with lots of dials ophthalmologists use to determine an eyeglass prescription) fell out of the wall while being used by an ophthalmologist and injured a patient. Claimant asserted this was not a health care liability claim and that defendants waived any complaint about the failure to serve an expert report because they waited until after expiration of the expert report deadline to make this objection. Claimant argued this was not a health care liability claim because her injury was caused by defendants’ failure to properly maintain the wall to which the phoropter was attached. In contrast, defendants argued this was a health care liability claim because the patient’s injury occurred during an eye examination performed by a physician in which the phoropter was being used.
The San Antonio Court of Appeals held this was a health care liability claim because (1) the patient was injured while receiving health care (2) from a health care provider, (3) at a health care facility. Furthermore, (4) defendants had duties to maintain a safe exam room and safe examination equipment, (5) the phoropter involved is a medical device commonly used in medical examinations, and (6) safety-related standards regarding exam rooms and exam equipment were implicated by this claim.
- Singely v. Staats, No. 02-23-00094-CV, 2023 Tex. App. Lexis 6963 (Tex. App.—Fort Worth Aug. 31, 2023, no pet.) (mem. op.).
Report Deficient
The patient here developed a fever shortly after receiving dental implants. This fever was reported to the defendant dentist who allegedly refused to examine the patient. Two days later, the patient was diagnosed with a liver abscess. Claimant’s expert reports asserted the dentist breached the standard of care by failing to examine the patient a few days after the implant procedure and diagnose the abscess. Claimant’s two expert reports assert that claimant’s abscess was likely caused by the dentist’s implant procedure. Neither expert claimed the dentist was negligent in connection with the implant procedure; both reports stated the dentist’s negligence was after the implant procedure because she failed to evaluate the patient after he developed a fever. The dentist objected to the reports and moved for dismissal of the claim because the reports failed to describe how the dentist’s failure to evaluate the patient caused or worsened the patient’s liver abscess or caused the patient any other damage. The trial court denied the dentist’s motion to dismiss and the dentist appealed.
The Fort Worth Court of Appeals acknowledged that, in theory, postoperative negligence could have contributed to the liver abscess, made it worse, or caused other related damage. Claimant’s reports, however, did not address how the dentist’s failure to examine the patient on the occasion in question “would have lessened the damage [the patient’s] liver abscess inflicted.” Stated another way, neither expert report explained what damage occurred during the following two days before the abscess was diagnosed.
The picture here was further clouded by the fact that claimant was seen and treated by his primary care physician during the two weeks between the implant procedure and the liver abscess diagnosis. With respect to the PCP’s care, one of claimant’s expert reports stated the PCP’s care was “nonsensical,” but then went on to state that while this action delayed claimant’s treatment for two weeks, “fortunately no other harm was done.”
For these reasons, the court of appeals held the trial court abused its discretion in denying the dentist’s motion to dismiss.
- McVaney v. Baylor Scott & White Med. Ctr.-Lakeway, No. 14-23-00301-CV, 2023 Tex. App. Lexis 5982 (Tex. App.—Houston [14th Dist.] Aug. 10, 2023, pet. filed) (mem. op.).
No Evidence of Causation
Summary judgment in favor of defendant hospital was affirmed because there was no evidence of causation against that defendant. Claimant asserted a health care liability claim alleging a “failure to diagnose and treat [his Guillain-Barre-Syndrome (GBS)] led to an increased severity of his GBS and resulted in ‘permanent paralysis resulting in permanent disability, disfigurement and [e]conomic loss.’” Claimant’s expert opined that the hospital failed to appropriately diagnose and treat claimant’s GBS, and that these failures had a “significant deleterious effect [on] the patient’s long-term outcome.” The expert further stated that based on information discussed in the report and three medical studies cited, “the delay in acute treatment …for GBS resultant from [the hospital’s] breaches in the standards of care contributed significantly and negatively to [the patient’s] long-term outcome.” Thus, the specific issue presented was “whether the delay in [immunotherapy treatment] due to [the] failure to diagnose [claimant’s] GBS while he was at the hospital caused [his] GBS to progress faster and/or with more severity than it would have with more rapid treatment.” The court of appeals’ analysis of this issue centered on the requirement that “an expert must explain the basis of his statements and link his conclusions to specific facts.” See Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 224 (Tex. 2018).
The court proceeded to discuss the problems with the opinions of claimant’s expert. First the expert mentioned that patient weakness upon admission (as measured and quantified by the Medical Research Council “sumscore”) is a main predictor of poor prognosis. Absent from the report was any mention of claimant’s sumscore on admission or at any later time, how a sumscore is calculated, or whether or when a sumscore was calculated for claimant. The expert simply stated that claimant’s sumscores at admission and later “not only boded poorly, but has been brought to fruition.” Second, the expert stated claimant’s treatment was delayed nearly 12 hours. Absent from the report was any information about the appropriate window of opportunity for timely treatment in order to avoid GBS becoming more serious. Third, the expert did not explain or discuss how he used the attached and referenced journal articles to reach his ultimate conclusion. The expert simply stated that based on “these and previous studies” the delay in treatment “contributed significantly and negatively to [claimant’s] long-term outcome.” While claimant argued the expert’s opinion was “logically deduced” from the studies cited, the court held this opinion was conclusory because the expert “never explained how he logically deduced his opinion nor did he link his opinion to specific facts.” Thus, the expert’s opinions “are not competent evidence.”
- Renaissance Med. Found. v. Lugo, 672 S.W.3d 901 (Tex. App.—Corpus Christi 2023, pet. filed).
Vicarious Liability/Respondeat Superior
This case addressed the vicarious liability of an employer for the alleged negligence of a defendant-physician. Defendant-employer moved for summary judgment arguing it could not be vicariously liable for the defendant-physician’s alleged negligence because it “cannot control – contractually and statutorily – the manner in which [defendant-physician] provide[d] medical care.” Defendant-employer asserted it could not be vicariously liable for the physician’s conduct because (1) its employment agreement with the physician stated the physician “‘retain[s] the right to exercise [his] independent medical judgment in providing’ medical services,” and (2) as a health organization it is prohibited from practicing medical or attempting to control the manner in which a physician practices medicine by statute. (citing Tex. Bus. Code Ann. § 22.056). Claimant argued the employer could be vicariously liable because the agreement between the employer and the physician exclusively referred to the physician as “employee,” not “independent contractor.”
In resolving this issue, the Corpus Christi Court of Appeals began with the basic premise of vicariously liable is whether an employer “has the right to control the progress, details, and methods of operations of the work.” (quoting Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002)). Further, “the right to control must extend to the specific activity from which the injury arose.” (quoting Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 911-12 (Tex. App.—Fort Worth 2009, pet. denied; citing Read v. Scott Fetzer Co., 990 S.W.2d 732, 736 (Tex. 1998)). The required right to control “may be shown by explicit contractual assignment or actual exercise of control.” (quoting Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex. 2004)). “Whether a contract explicitly assigns the right to control is generally a question of law for the court.” (quoting Id.).
Here, there was no evidence or suggestion the defendant-employer exercised actual control over the physician during the surgery in question. Thus, the court looked to whether the underlying contract explicitly gave the employer the right to control these actions. While the contract solely refers to the physician as “employee” and not “independent contractor,” case law requires the court to “go beyond the terminology used in the contract” (quoting Farlow, 284 S.W.3d at 911) because “[t]he true test remains the right of control.” (quoting Newspapers, Inc. v. Love, 380 S.W.3d 582, 592 (Tex. 1964)).
In support of its claim the physician was an independent contractor, not an employee, employer referenced (1) the general rule that physicians are considered general contractors (citing Espalin v. Children’s Med. Ctr. of Dallas, 27 S.W.3d 675, 684 (Tex. App.—Dallas 2000, no pet.)), and (2) a provision in the contract stating “at all times [defendant-physician] shall retain the right to exercise [his] independent medical judgment in providing the Medical Services to patients.”
In response, claimant pointed out that the contract contained a number of “substantive” requirements “restricting the manner in which [the physician] performs medical services,” including requirements that he (1) perform services “within current and approved methods and standards of practice” in the medical community, (2) use his “best efforts” to render medical services, (3) practice at sites directed by the employer, (4) will follow “all reasonable [company] rules, regulations, procedures, policies and bylaws,” and (5) “shall treat patients” in accordance with applicable board and society guidelines (here specifically the American Society of Pediatric Neurosurgeons, and American Board of Pediatric Neurological Surgery), as well as applicable Federal Drug Administration rules.
To answer the question of whether or not the physician’s employer had the right to control the medical care rendered to this patient, the Corpus Christi Court of Appeals looked to authority that addressed whether a physician was the employee of a governmental unit under the Texas Tort Claims Act (TTCA). While the TTCA was not at issue in this case, the Corpus Christi Court believed this authority to be relevant (and, ultimately persuasive/controlling) because the TTCA’s “definition of employee is virtually identical to the common law definition of employee, which is applicable in this case.” Based on the holdings in Texas Supreme Court TTCA cases involving similar contractual language (Marino v. Lenoir, 526 S.W.3d 403 (Tex. 2017); Murk v. Scheele, 120 S.W.3d 865 (Tex. 2003); see also Dalehite v. Nauta, 79 S.W.3d 243 (Tex. App.—Houston [14th Dist.] 2002, pet. denied)), the Corpus Christi Court of Appeals held the physician was an “employee” and not an “independent contractor.”
This decision is problematic because if it stands as is it could (and would) be used to establish liability against other entities that are clearly not the employers of physicians; like hospitals and similar health care institutions. Specifically, when physicians are accepted to the medical staffs of hospitals and similar entities, the physicians agree to follow provisions the same as or similar to the provisions relied on by the court here. Thus, this decision exposes these entities to vicarious liability for the negligent acts of their medical staff members. This has been pointed out by the employer in its briefing to the Texas Supreme Court in support of its request for a petition for review filed back in August 2023. The Texas Supreme Court appears to recognize this situation since it (1) has not simply denied the petition for review, and (2) has requested merits briefing from the parties. In addition, the Texas Hospital Association has filed an amicus curiae brief that points out this concern. Notably, the Texas Medical Association has filed an amicus brief (apparently in response to the THA’s brief) arguing the Corpus Christi Court’s opinion should stand.
It is surprising that the State of Texas has not weighed in to date. If left as is, this opinion could be used to erode the protection provided to physicians employed by State of Texas medical schools (UT Southwestern for example) by arguing they are also employees of the non-UT System facilities where they have staff privileges. For years, claimants have tried to argue UT Southwestern physicians on staff at Children’s Medical Center Dallas are also the “employees” of Children’s because they agree to follow Children’s staff bylaws; and are thereby exposed to individual liability. (See Skapek v. Perkins, No. 05-16-00796-CV, 2017 Tex. App. Lexis 1413 (Tex. App.—Dallas Feb. 17, 2017, pet. denied); Powell v. Knipp, 479 S.W.3d 394 (Tex. App.—Dallas 2015, pet. denied)).
- Colum. Med. Ctr. of Arlington Subsidiary, L.P. v. Bush, No. 02-22-00319-CV, 2023 Tex. App. Lexis 2562 (Tex. App.—Fort Worth Apr. 20. 2023, pet. filed) (mem. op.).
Report Deficient
An expert report was deficient because it failed to describe how “the mere presence of standard procedures would have overridden the actual medical diagnoses or treatment order of the doctors who were present at the time of the incident.” The expert report was deficient, even though it stated a hospital should have “policies, procedures, or protocols that dictate medical treatment,” because it failed to “describe how the hospital could enact and enforce such rules on medical decision making.” Specifically, and by way of example, the court stated:
If a doctor evaluates a patient and does not implement the hospital’s protocol, what happens? Does a nurse or other hospital employee then have the authority to order the tests? If not, how does the protocol get implemented? Does it require invoking a chain of command within the hospital administration, medical staff, or otherwise? If so, who all is involved and how long does it take? While the decision-making is being reviewed, who handles the patient’s medical care? Although Dr. Patterson’s opinion is simplistic on its face, it fails to adequately explain the connection between the alleged breach of the standard of care, i.e., lack of policies, procedures, and protocols and how those policies, procedures or protocols would have changed the patient’s outcome had they been in place.
- Costilla v. Dhala, No. 14-22-00416-CV 2023 Tex. App. Lexis 8341 (Tex. App.—Corpus Christi Feb. 9, 2023, no pet.) (mem. op.).
No Report, Relevance of Initial Reports, Recoverable Attorney’s Fees
The initial reports “appear” to be “no report” since Dr, Dhala is not mentioned at all in the initial reports. Moreover, Dr. Dhala’s initial motion to dismiss pointed out that Dr. Dhala was not involved in the care and treatment complained of until after the critical events at issue. Claimant argued the case was a “one size fits all” case, and was given leave to cure deficiencies. Claimant served an amended report that stated, “It is also below the standard of care for the intensivist, Dr. Dhala who was covering the ICU during this time was [sic] unaware that [Kristy] was admitted or aware of her condition and progressive neurological changes…” Absent from the report, however, was an explanation of “what Dr. Dhala did or failed to do that caused Kristy’s injuries other than being ‘unaware’ Kristy was admitted or ‘aware’ of her condition.” The court found the report insufficient because it “does not provide specific information about what Dr. Dhala should have done differently,” and thus prevents the court from “determin[ing] what Dr. Dhala should have done differently.” Specifically, the court stated, “Being ‘aware’ or ‘unaware’ of Kristy’s condition while Dr. Dhala was ‘on call’…is not a statement of a standard of care.”
The Corpus Christi also mentioned that plaintiff’s references to the initial expert report of a Dr. Cruz was not considered because an “amended expert report served after a thirty-day extension granted by the trial court super[s]edes the initial report filed by the [plaintiff].”
Finally, the case discusses what constitutes sufficient evidence of reasonable and necessary attorney’s fees (there must be “some evidence” the fees “were both incurred and reasonable.”).
- Jackson v. Puckett, No. 01-22-00369-CV, 2023 Tex. App. Lexis 757 (Tex. App.—Houston [1st Dist] Feb. 7, 2023, pet. denied) (mem. op.).
Avoiding No Answer Default Judgment
“Once an answer is on file, even if it is filed after the due date, the trial court may not render a no-answer default judgment.”
- Jalaram Med. Spa, Inc. v. Durbin, No. 14-21-00060-CV, 2023 Tex. App. Lexis 684 (Tex. App.—Houston [14th], Feb. 2, 2023, pet. denied).
What Constitutes a Health Care Liability Claim, Objecting to Failure to Serve Report
Whether or not plaintiff asserted a health care liability claim (HCLC) is a question of law.
A laser hair removal facility that provides documentation proper protocols were established and audited by a physician is an HCLC. See Tex. Health & Safety Code § 401.519. Specifically, when a physician directly or indirectly controls the actions of a facility like a laser hair removal facility, that facility is an affiliate of that physician and is, thus, a health care provider. Tex. Civ. Prac. & Rem. Code § 74.001(a)(3); Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 759 (Tex. 2014). Further, because plaintiff completed forms documenting “medical history, informed consent, and medical information disclosures,” claimant was a patient. See Rio Grande Valley Vein Clinic, P.A. v. Guerrero, 431 S.W.3d 64, 65 (Tex. 2014).
Even though defendant waited until 344 days after expiration of the 120-day expert report deadline to file a motion to dismiss for failure to serve the necessary expert report, and even though defendant deposed plaintiff and retained an expert; defendant did not waive its right to seek dismissal of plaintiff’s claim for failure to serve the necessary expert report. See Jernigan v. Langley, 111 S.W.3d 153. 157 (Tex. 2003); Seifert v. Price, No. 05-08-00655-CV, 2008 Tex. App. Lexis 9595 (Tex. App.—Dallas Dec. 23, 2008, pet. denied) (mem. op.).
- Tyler OPS LTC, Inc. v. Butler, No. 12-22-00188-CV, 2023 Tex. App. Lexis 623 (Tex. App.—Tyler, Jan. 31, 2023, no pet.).
Report Deficient
An expert report’s opinions addressing theories/causes of action that are not pleaded should not be considered when addressing the adequacy of the report. The report provided no basis for the trial court to conclude a breach caused an alleged injury where the report did not explain (1) how or why failure to notice the patient’s developing ischemia caused her hand injury, (2) when the underlying vessel occlusion developed and when, if ever, transfer to a higher level of care would have prevented the patient’s hand injury, (3) any treatment that would have been successful had the patient been transferred to a higher level of care, and (4) the treatments that were available if the patient’s condition were diagnosed sooner and the effectiveness of those treatments in this patient.
UPCOMING TEXAS SUPREME COURT DECISIONS OF INTEREST
- In re Barnes, 655 S.W.3d 658 (Tex. App.—Dallas 2022, pet. granted).
Argued Before the Texas Supreme Court on January 30, 2024.
Issue – Whether a minor plaintiff-patient’s healthcare records are discoverable when the patient seeks mental anguish damages in a negligence and bystander recovery suit. The minor plaintiff was injured and her older brother was killed in an ATV rollover accident.
In her initial disclosure responses, minor plaintiff designated her pediatrician and clinical psychologist as fact witnesses and non-retained testifying experts. In response to one defendant’s request, plaintiff produced unredacted records from each provider without objection. Two years later, another defendant subpoenaed updated records from these providers related to their treatment of plaintiff for psychological issues. In response, plaintiff filed a motion to quash arguing the records sought were privileged and exempt from discovery under Texas Rules of Evidence 509 and 510. At a hearing conducted by the trial court, plaintiff’s counsel stated that the designation of these healthcare providers as testifying would be withdrawn, even though plaintiff’s initial disclosure responses had never been amended. The trial court denied the motion to quash and ordered the subpoenaed records produced. Plaintiff sought mandamus from the Dallas Court of Appeals, and the court granted plaintiff’s motion and directed the trial court to vacate its order the records be produced. The Dallas Court of Appeals held that the litigation exception to Rules 509 and 510 did not apply because plaintiff only sought a “routine” claim for mental anguish damages, and, therefore, was not relying on her mental or emotional condition as a part of her claim or recovery. Defendant argued the “shock” element of plaintiff’s mental anguish claim triggered the litigation exception to the privilege under Rules 509 and 510.
- Velasco v. Noe, 645 S.W.3d 850 (Tex. App.—El Paso, pet. granted).
Argued before the Texas Supreme Court on November 20, 2023.
Issue – In failed tubal case (follow patient’s 3rd pregnancy), the El Paso Court of Appeals addressed whether a mother has a claim for non-economic mental anguish damages directly related to her 4th pregnancy. This is an issue that the Texas Supreme Court has not directly addressed.
Here, the defendant argued the potential damages in such a claim (wrongful pregnancy) are limited to the medical expenses of the negligently non-performed sterilization procedure that resulted in the unplanned pregnancy. Since the defendant reimbursed the mother for her expense, and since the mother produced no evidence of any other related expenses, it argued it negated the damages element of the mother’s claim. The El Paso Court of Appeals held that the mother produced some evidence that supported her request for recovery of non-economic mental anguish damages, and that such damages were recoverable under the facts of this case and Texas law.
Before addressing that issue, the court held consistent with existing case law that in a wrongful pregnancy case (1) the expenses of raising a healthy child are not recoverable, and (2) the medical expenses incurred for the failed sterilization procedure are recoverable. In this case, however, the evidence showed the mother was reimbursed for the expense she incurred for the failed procedure, and the mother did not allege or produced evidence of any complications or expense from the unexpected pregnancy or birth. Thus, there was no evidence the mother suffered any economic loss.
With respect to the mother’s alleged non-economic mental anguish damages, the El Paso court focused on the fact that the mother sought damages related to physical pain and psychological stressors related to being pregnant, as opposed to non-economic damages related to raising a healthy child. This holding is the direct opposite of the Texarkana Court of Appeals’ 1996 ruling in Crawford v. Kirk, 929 S.W.2d 633, 637 (Tex. App.—Texarkana, writ denied). In distinguishing Crawford, the El Paso court first pointed out Crawford “does not recognize the clear distinction between the feelings one experiences in raising a child and the feelings one experiences in carrying a birthing a child; it is quite possible to feel extreme elation from one and extreme distress, or worse, from the other.” It went on to state Crawford:
[D]oes not contemplate situations where a person who, following negligent medical sterilization, becomes pregnant and does not go home with a child (whether through abortion, miscarriage, stillbirth or adoption). These people do not have the redemptive experience of raising the child to “compensate” them for having to carry and deliver a child against their wishes and are equally or more likely to experience symptoms qualifying as mental anguish as a direct result of the pregnancy and/or birth.
The El Paso Court of Appeals then went on to address “the unique circumstances of this case,” arguing this case is different involved the failure to perform a sterilization procedure and not being told that, as opposed to the “negligent” performance of a sterilization procedure, thereby making the procedure unsuccessful. Thus, because the mother had produced evidence of her alleged non-economic damages after learning the sterilization procedure had not been performed, she had controverted defendant’s summary judgment on the damages element of her claim.
